Interim Report - Report No 291, November 1993

Case No 1706 (Peru) - Complaint date: 19-MAR-93 - Closed

1. 475. The complaint in the present case is contained in a communication from the National Federation of Workers of the Judiciary dated 19 March 1993.
2. 476. The Government sent its observations in a communication dated 12 May 1993.
3. 477. Peru has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant's allegations

1. 478. In its communication of 19 March 1993, the National Federation of Workers of the Judiciary alleges that the Government has issued Legislative Decree No. 768 (a new Code of Civil Procedure), which bars employees of the Judiciary from exercising the right to organize or to strike. The complainant organization states that its membership includes administrative workers known within the operational framework of the Judiciary as jurisdictional auxiliaries (forming part of the administrative staff), but that, whereas under the previous legislation this category of worker enjoyed trade union rights, the new legislation places them in the same situation as magistrates, who, under section 243 of the Political Constitution of Peru, are barred from forming trade unions or taking strike action.
2. 479. The complainant further alleges that by virtue of Legislative Decrees Nos. 25446 and 25812, under which a procedure for evaluating staff of the Judiciary was established, nine trade unionists have been irrevocably dismissed from their posts. It states that these dismissals were decided unilaterally and in total disregard of the regulations protecting public employees from dismissal and of the right of staff so evaluated to defend themselves.

B. The Government's reply

1. 480. In its communication of 12 May 1993, the Government states that under the terms of section 251 of Legislative Decree No. 757 (Law respecting the Organization of the Judiciary), the term "jurisdictional auxiliary" includes court registrars and reporting clerks in the Supreme Court, court registrars and reporting clerks in the Higher Courts, registrars of specialized or joint courts and auxiliary justice officials. It points out that the crisis currently affecting the Judiciary has made it necessary for workers in this category to assume more functions and greater responsibilities than are provided for under the law. The process of reorganizing and modernizing the state authorities and the introduction of the corresponding legislation have resulted in reductions in the qualified and specialized staff of the Judiciary, and the magistrates are now obliged to rely on the support and close cooperation of the jurisdictional auxiliaries. Reforming the state apparatus has meant putting these workers on the same level as the magistrates, even though they may not be qualified to act as such. This being the case, the new provisions of the Code of Civil Procedure do not violate the ILO Conventions.
2. 481. As regards the dismissal of nine trade union leaders as a consequence of the evaluation procedure established under Legislative Decree No. 25446, the Government states that a committee was set up to evaluate the Supreme Court and Higher Court magistrates, judges of the first instance, professional justices of the peace, court registrars and reporting clerks, registrars in the lower courts, general secretaries, administrative court secretaries and auxiliary and administrative staff of the Judiciary. The evaluation committee presents its final report to the full Court, which in turn decides whether the worker in question is to be confirmed in his or her post or dismissed. The Government explains that the aim of this procedure is to investigate visible signs of wealth which could point to misconduct on the part of officials and that the anti-corruption campaign in the Judiciary provides for all appropriate guarantees, but states that it will request information from the Supreme Court regarding the alleged violation of the trade union rights of the dismissed union leaders.

C. The Committee's conclusions

1. 482. The Committee notes that in the present case the complainant alleges that, because they are now assimilated to magistrates by virtue of a reform of the Code of Civil Procedure, the jurisdictional auxiliaries of the Judiciary have been barred from exercising the right to organize or to strike.
2. 483. The Committee takes note of the Government's observations and observes that they do not contradict the allegations, although the Government justifies the bar imposed on the right to organize and to strike on the grounds (1) that the crisis currently affecting the Judiciary has made it necessary for auxiliary workers in the Judiciary to assure more functions and greater responsibilities than are provided for under the law; (2) that the process of reorganizing and modernizing the state authorities has resulted in a reduction of the qualified and specialized staff of the Judiciary; and (3) that reforming the state apparatus has meant assimilating these workers to magistrates.
3. 484. The Committee appreciates that a reduction in the number of qualified staff in the Judiciary might give rise to a fear that strike action could unduly hinder the normal administration of justice. However, as regards specifically the barring of workers of the Judiciary from the right to organize, the Committee would remind the Government that Article 2 of Convention No. 87 provides that workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization. Following on from this, all public employees (with the sole possible exception of the armed forces and the police, as indicated in Article 9 of the Convention) should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members. The Committee accordingly urges the Government to take initiatives to amend the legislation in such a way as to enable employees of the Judiciary to exercise freely the right to organize.
4. 485. As regards the barring of workers in the Judiciary from the right to strike, the Committee would point out that, in accordance with its principles, the right to strike may be subject to restrictions or prohibition in the public service, in the case of officials who act as agents of the public authority. In the Committee's view, officials working in the administration of justice are officials who act as agents of the public authority and whose right to strike could thus be subject to restrictions or even prohibition. However, the Committee reminds the Government that restrictions should be offset by adequate, impartial and speedy conciliation and arbitration procedures, in which the parties concerned can take part at every stage and in which the awards should in all cases be binding on both parties, and that such awards, once rendered, should be rapidly and fully implemented (see General Survey by the Committee of Experts, 1983, para. 214). The Committee accordingly urges the Government to take steps to make such procedures available to workers in the Judiciary.
5. 486. The Committee draws the legislative aspect of this to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
6. 487. As regards the allegation concerning the dismissal of nine trade union leaders from the Judiciary as a result of an evaluation procedure, the Committee takes note of the Government's observations to the effect that the aim of that procedure is to investigate visible signs of wealth which could point to misconduct on the part of officials and that the anti-corruption campaign in the Judiciary provides for all appropriate guarantees, but that the Government will nevertheless request information from the Supreme Court on the alleged violation of the trade union rights of the dismissed leaders. In these circumstances, the Committee requests the Government to inform it of the outcome of its request for information from the Supreme Court.

The Committee's recommendations

1. 488. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to take initiatives to amend the legislation so as to enable employees of the Judiciary to exercise freely the right to organize.
   • (b) The Committee urges the Government to take steps to make available to employees in the administration of justice to whom the right to strike is denied adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can take part at every stage and in which the awards should in all cases be binding on both parties and should, once rendered, be rapidly and fully implemented.
   • (c) The Committee requests the Government to inform it of the outcome of its request for information from the Supreme Court concerning the dismissal from their posts of nine trade union leaders who were formerly engaged in the Judiciary.
   • (d) The Committee draws the legislative aspect of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.